IN THE UNITED STATES DISTRICT COURT

 FOR THE SOUTHERN DISTRICT OF OHIO

 EASTERN DIVISION

United States of America, :

 

Plaintiff, :

 

v. : Case No. 2:11-mj-0759 

 

Noe Fabian Franco-Villalvazo, : Magistrate Judge Kemp

Defendant. :

 

 DETENTION ORDER

The defendant, Noe Fabian Franco-Villalvazo, accompanied by

counsel, appeared for a preliminary hearing and detention hearing

on October 4, 2011. After the hearing, the Court decided that

the defendant should be detained pending further proceedings. 

This order explains why.

On September 23, 2011, defendant was charged in a criminal

complaint with possession with intent to distribute a controlled

substance (approximately 1,500 grams of heroin). As discussed

below, the Court found probable cause at the a preliminary

hearing. That finding gives rise to a presumption of detention,

explained as follows.

Legal Standard Applicable. The United States' request

for detention is based primarily upon the presumption that

arises under 18 U.S.C. §3142(e) for persons charged with serious

drug offenses, certain firearms offenses, and certain offenses

involving minor victims. That statute states, in pertinent part,

that:

 Subject to rebuttal by the person, it

 shall be presumed that no condition or

 combination of conditions will reasonably

 assure the appearance of the person

 as required and the safety of the

 community if the judicial officer

 finds that there is probable cause to

 believe that the person committed an

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 offense for which a maximum term of

 imprisonment of ten years or more is

 prescribed in the Controlled Substances

 Act (2l U.S.C. 801 et seq)...[or] an 

offense under section 924(c)...of this

title... or an offense involving a minor 

 victim [under selected statutes].”

Under 18 U.S.C. §3142(f), if detention is based upon facts

supporting a finding that no condition or combination of

conditions will reasonably assure the safety of any other person

and the community, such facts must be proved by clear and

convincing evidence. However, if detention is based upon a

finding that no condition or combination of conditions will

reasonably assure the appearance of the person as required, proof

by a preponderance of the evidence is sufficient.

 The proper effect to be given to this rebuttable

presumption is discussed in United States v. Jessup, 757

F.2d 378 (1st Cir. 1985). There, the Court indicated that

the presumption shifts the burden of producing evidence to

the defendants, and also remains in the case even after the

defendants have satisfied their production burden. Further, in a

narcotics case, because the history of the statute indicates that

Congress had in mind a specific set of circumstances relating to

drug offenses which led to the adoption of the rebuttable

presumption, it is appropriate for a Court addressing the

issue of detention to determine how closely the facts of the

case before the Court parallel those of the "Congressional

paradigm," or profile of those drug offenders who present the

most serious risk of flight or danger to the community. That

paradigm, in brief, indicates a Congressional awareness of

the lucrative nature of drug trafficking, and the fact that

many persons engaged in that occupation have substantial ties

outside the United States. Consequently, even if a high

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monetary bond is set for such persons, they are able, through

the use of proceeds derived from drug trafficking, to post

such bond, and are also able to flee the country because of

their contacts elsewhere.

 In order to attempt to rebut the presumption of detention

arising from charges under the Controlled Substances Act or other

applicable statutes, the defendant need not attempt to prove that

he or she did not commit the crime as charged. Rather, that

burden can be met by introducing evidence of other appropriate

factors as described in 18 U.S.C. §3142(g), including personal

history and characteristics relating to character, family ties,

employment, financial resources, length of residence in the

community, community ties, past conduct, history relating to drug

or alcohol abuse, criminal history, and record concerning

appearance in court proceedings. If any such evidence is

introduced, the presumption cannot be used by the Court as

conclusive evidence that the defendant poses an unacceptable risk

to the community or that conditions will not reasonably assure

the defendant’s appearance. United States v. Dominguez, 783 F.2d

702 (7th Cir. 1986). However, that presumption still remains in

the case to be given whatever weight the Court deems appropriate.

The United States called one witness at the hearing, Task

Force Officer Austin Francescone, who testified that the

defendant has been the subject of an ongoing investigation into

heroin trafficking at the El Mariachi restaurant located on East

Main Street. Information from a confidential source also

indicated that defendant might have a firearm. Investigators

approached the defendant on September 23, 2011, as he was leaving

his apartment, and after a “stop and frisk” they found heroin on

his person. A state search warrant was then obtained, and

additional heroin, along with other evidence of drug trafficking,

was found in his apartment. A reasonable person could find from

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this testimony that defendant committed the crime he is charged

with, so the Court made a probable cause finding based on that

evidence.

The Court also received a brief memorandum from Pretrial

Services. It appears that the defendant is in the United States

illegally and has been deported once before. There is also an

immigration detainer lodged against him.

Here, in addition to the presumption in favor of detention

created by the probable cause finding, the Court notes that the

evidence against the defendant is strong and that he is facing

significant prison time if convicted. His immigration status is

also a negative factor. The Court has no evidence to evaluate

concerning his ties to the community or employment history. 

Given all of these factors, detention appeared to be the only

option.

The defendant is advised of his right to seek review of this

order by a United States District Judge pursuant to 18 U.S.C.

§3145(b).

/s/ Terence P. Kemp 

United States Magistrate Judge

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